United States District Court, N.D. California, San Jose Division
ORDER GRANTING MOTION TO DISMISS INDICTMENT [RE:
LABSON FREEMAN, United States District Judge.
Christian Cabrera-Ochoa is charged with one count of
violating 8 U.S.C. §§ 1326(a)-(b), which prohibit
illegally re-entering the United States after being removed
or deported. See Indictment, ECF 8. Cabrera-Ochoa
moves to dismiss the indictment on the grounds that his prior
removal orders cannot serve as predicates for this illegal
reentry prosecution. See Mot. at 1, ECF 39. The
Court finds that Cabrera-Ochoa has satisfied the requirements
for collaterally attacking both his 2007 and 2008 removal
orders under 8 U.S.C. § 1326(d), and GRANTS his motion
to dismiss.I. BACKGROUND A. Childhood and Adolescence
Cabrera-Ochoa was born on Feb. 3, 1990, in Mexico.
See ___; Cabrera-Ochoa Decl.¶ 2, Def.'s
Ex. A, ECF 39-1. He has never had a relationship with his
father, and after Cabrera-Ochoa's birth, his mother left
him in Mexico and came to the United States. See
Cabrera-Ochoa Decl. ¶ 2, Def.'s Ex. A. When
Cabrera-Ochoa was five or six years old, he came to the
United States with his mother's friends, using a fake
passport. See Informal Transcript of May 24, 2007
Removal Hearing at 9-10, 10 Def.'s Ex. O, ECF 41
Cabrera-Ochoa rejoined his mother, his life was marked by
abuse and neglect: his mother was physically, verbally, and
emotionally abusive, and frequently beat him with cables and
belts. See Cabrera-Ochoa Decl. ¶ 5, Def.'s Ex.
A, ECF 39-1.___ I In addition to the physical abuse,
Cabrera-Ochoa's mother often kicked him out of their
home, told him she hated him and regretted having him, and
threatened to hurt him and burn his hands on the stove.
See Cabrera-Ochoa Decl. ¶ 7, Def.'s Ex. A,
ECF 39-1. Cabrera-Ochoa was so scared of his mother that he
would run away from home for two to three days at a time.
See Id. ¶5. When he was twelve, he gravitated
toward gangs for support, occasionally staying with an older
man that made space in his house for runaway children.
See Id. at ¶ 8.
situation improved somewhat in late 2005 and early 2006.___
2007 Transcript at 13, Def.'s Ex. O, ECF 41.___ One day
later-and just ten days after Cabrera-Ochoa's seventeenth
birthday-ICE served him with a Notice to Appear
("NTA"), on Feb. 13, 2007. See Feb. 13, 2007 Notice
to Appear at 1, Def.'s Ex. M, ECF 39-1 ("2007
2007 NTA alleged that Cabrera-Ochoa was removable under
Section 212(a)(6)(A)(i) of the Immigration and Nationality
Act because he was not a United States citizen or national;
was a native and citizen of Mexico, entered the United States
at an unknown location, and was not then admitted or paroled
after inspection by an Immigration Officer. See 2007 NTA at
1, Def.'s Ex. M, ECF 39-1. During the removal
proceedings, Cabrera-Ochoa was taken to Indiana and held in
an Office of Refugee Resettlement facility for over three
months, until he had a removal hearing on May 24, 2007.
removal hearing, the immigration judge ("I J")
conducted a group hearing with Cabrera-Ochoa and two other
boys, and then an individual hearing. See 2007 Transcript,
Def.'s Ex. O, ECF 41. During the group hearing, the IJ
briefly confirmed that the respondents had received copies of
their NTA; asked if they had seen a Know Your Rights
presentation; and checked if they had attorneys. See
Id. at 1-6. When the respondents said that they did not
know if they had lawyers, the IJ told them that a lawyer from
the National Immigration Justice Center could talk to them,
but would not be available until another day. See
Id. at 3. She asked if any of the respondents wanted to
continue their cases so that they could have time to meet
with the lawyer, and none of them did. See Id. at
then held an individual hearing with Cabrera-Ochoa, where she
reviewed the allegations in the NTA. Crucially, she asked
about his entry into the United States, and Cabrera-Ochoa
said that he "used a passport with different
names." Id. at 10. In a moment of apparent
distraction, however, the IJ found that Cabrera-Ochoa had
admitted to the allegation of entering without being
inspected or admitted. See Id. at 11, 17. She
informed him that "it [didn't] seem to [her] that
there's any relief from removal besides perhaps um
voluntary departure." Id. at 12. She then
questioned him about his juvenile criminal history and his
gang activities. Id. at 12-16. The Government stated
that it "would oppose voluntary departure, " in
part because of Cabrera-Ochoa's "gang affiliation
and membership issues." Id. at 16. The IJ,
however, gave Cabrera-Ochoa credit for being
"honest" with her and telling her "the truth
about [his] gang affiliation, " and granted him
voluntary departure. Id. At no point did the IJ
raise the possibility of eligibility for Special Immigrant
Juvenile Status ("SIJS"), a form of immigration
relief available for abused, abandoned, or neglected minors,
despite Cabrera-Ochoa's youth, long wardship history, and
his testimony about his difficult relationship with his
mother. See Id. at 13.
the hearing, counselors at the ORR juvenile detention
facility spoke with Cabrera-Ochoa about the voluntary
departure he had received. See Cabrera-Ochoa Decl.
¶ 15, Def.'s Ex. A, ECF 39-1. Cabrera-Ochoa did not
understand what voluntary departure was or why it might be
helpful for him, and the counselors told him not to use his
money or his aunt's money to pay for his fare to Mexico,
because either way, he was getting deported. See Id.
The counselors told him to save any money his aunt sent him
so that he could use it in Mexico. See Id.
Cabrera-Ochoa then received some money from his aunt and
asked to be deported. See Id. at ¶¶ 15-16.___
Nov. 2008 Removal Proceedings
being deported to Mexico, Cabrera-Ochoa was taken to a group
home in Ciudad Juarez until his mother was found.
See Cabrera-Ochoa Decl. ¶ 17, Def.'s Ex. A,
ECF 39-1. He stayed with her on and off for a few months, but
she was not supportive of him. See Id. Sometime in
2008, Cabrera-Ochoa returned to the United States.
See Sept. 4, 2008 Notice to Appear, PL's Ex. A,
ECF 48-1. On Sept. 1, 2008, he was arrested for vehicle
theft. See Rap Sheet at 6, Def.'s Ex. K, ECF
39-1. ICE served him with a Notice to Appear shortly
afterward. See 2008 NTA, PL's Ex. A, ECF 48-1.
While removal proceedings were pending, Cabrera-Ochoa was
arrested again and charged with participating in a criminal
street gang, promoting a criminal street gang, possession of
a dangerous weapon, and possession of stolen property, but
all charges were dismissed. See Rap Sheet at 6,
Def.'s Ex. K, ECF 39-1. ICE then served a second Notice
to Appear on Oct. 17, 2008. See Oct. 17 2008 Notice
to Appear, Def.'s Ex. T, ECF 39-1.
received a hearing before an IJ in November 2008, and this
hearing, like the previous year's, consisted of a group
hearing and an individual hearing. At the group hearing, the
IJ verified that each respondent had received a Notice to
Appear and a copy of the EOIR list of free legal service
providers. See Informal Transcript of Nov. 6, 2008
Removal Hearing at 1-3, Def.'s Ex. V, ECF 39-1
("2008 Transcript"). The IJ explained the right to
counsel, the right to appeal, and other procedural rights.
See Id. at 4-6. In Cabrera-Ochoa's individual
hearing, the IJ asked if Cabrera-Ochoa wanted time to find an
attorney, and Cabrera-Ochoa declined. See Id. at 6.
The IJ then reviewed the allegations in the Notice to Appear
and asked Cabrera-Ochoa if they were true. See Id.
at 7-8. The IJ also asked Cabrera-Ochoa about his previous
removal proceedings, and whether he had previously been
charged with entering without being inspected or admitted.
See Id. at 8. Cabrera-Ochoa said, "Yes."
Id. The IJ then stated that because Cabrera-Ochoa
had previously received voluntary departure, he could not
receive it again, and there appeared to be no other relief
available. See Id. The IJ found that Cabrera-Ochoa
was removable and asked if Cabrera-Ochoa wanted to appeal his
decision. See Id. at 8-9. Cabrera-Ochoa's
response is unintelligible on the audio recording, but he
appears to have indicated that he did not want to appeal, and
so he was ordered removed. See Id. at 9; Order of
the Immigration Judge, I Def.'sEx. W, ECF39-1.
Dec. 2008 and 2014 Removal Proceedings
December 2008 and August 2014, Cabrera-Ochoa was removed
pursuant to reinstatements of the Nov. 6, 2008 removal order.
See Notices of Intent/Decisions to Reinstate Prior
Order, Def.'s Ex. X, ECF 39-1.
now is charged with violating 8 U.S.C. §§ 1326(a),
(b) by illegally reentering the United States without the
permission of the Attorney General or the Secretary of
Homeland Security. See Indictment, ECF 8. He moves
to dismiss this charge on the ground that both his 2007 and
2008 removal orders were unlawful and cannot be the predicate
for the Section 1326 illegal reentry charge.
a defendant to be convicted of illegal reentry under 8 U.S.C.
§ 1326, the Government must establish that the defendant
left the United States under order of exclusion, deportation,
or removal, and then illegally reentered." United
States v. Raya-Vaca, 111 F.3d 1195, 1201 (9th Cir. 2014)
(internal quotation marks and citation omitted). "A
defendant charged under § 1326 has a due process right
to collaterally attack his removal order because the removal
order serves as a predicate element of his conviction."
Id. (internal quotation marks and citation omitted).
U.S.C. § 1326(d) sets forth three requirements for
collaterally attacking the underlying deportation order in a
Section 1326 case. The defendant must show that he or she (1)
exhausted administrative remedies; (2) was deprived of the
opportunity for judicial review, and (3) the entry of the
order was fundamentally unfair. See Raya-Vaca, 111
F.3d at 1201 (citing 8 U.S.C. § 1326(d)). A
defendants can establish the first two requirements by
showing that he or she was denied judicial review of the
removal proceedings in violation of due process, or by
"showing that immigration officials in the underlying
removal proceeding violated a regulation designed to protect
an alien's right to judicial review." United
States v. Gomez, 757 F.3d 885, 892 (9th Cir. 2014). To
satisfy the third requirement, the defendant bears the burden
of establishing both that the deportation process violated
his or her due process rights and that the violation caused
prejudice. See Raya-Vaca, 111 F.3d at 1201-02.
case involves two separate removal proceedings, each of which
raises significant due process concerns. The Government
states that it will rely only on the 2008 deportation order
as a basis for this Section 1326 prosecution and will not
rely on the 2007 removal. See Opp. at 1, ECF48. The
Court nonetheless must assess the validity of both
immigration proceedings, however, because the validity of the
2008 deportation depends on the validity of the 2007 removal
proceedings. The Court will first make findings of fact about
the 2007 proceedings, then determine whether Cabrera-Ochoa
waived his right to appeal the 2007 and 2008 orders, and then
address the collateral Section 1326(d) attacks on the 2007
and 2008 orders.
Findings of Fact Regarding 2007 Removal Proceedings
Cabrera-Ochoa Did Not Enter Without Inspection
Court finds that when Cabrera-Ochoa first came to the United
States, he did not enter without inspection. The Court finds
that Cabrera-Ochoa was inspected and admitted on a false
passport. The only evidence on this issue is
Cabrera-Ochoa's own testimony.
2007 removal hearing, the IJ asked Cabrera-Ochoa, "So
when you came to the United States, did you come with [your
mother]? Who did you come to the U.S. with? Anybody?"
2007 Transcript at 10, Def.'s Ex. O, ECF 41.
answered, "Some, like my mom's friends, I don't
know, I don't really \ know, I used a passport
with different names." Id.
statement that he "used a passport with different
names" indicates that he was inspected and admitted to
this country, because there would have been no need for a
passport if he had entered without inspection. Despite this
testimony, however, the IJ found that Cabrera- j Ochoa had
admitted the fourth factual allegation in his Notice to
Appear, which alleged that after entering the United States,
Cabrera-Ochoa "[was] not then admitted or paroled after
inspection by an Immigration Officer." 2007 Transcript
at 11, 17, Def.'s Ex. O, ECF 41; 2007 NTA at 1,
Def.'s Ex.M, ECF39-l.
Government argues that the IJ correctly found that
Cabrera-Ochoa had entered without inspection, because
"one can infer that the judge determined that
defendant's testimony was not credible." Opp. at 9,
ECF 48. Cabrera-Ochoa argues that there is no basis to
conclude that the IJ discounted his testimony, and suggests
that she "either did not hear what he said, or forgot
what he said, or did not realize its legal
significance." Reply at 8, ECF 49.
in the record suggests that the IJ found Cabrera-Ochoa's
testimony to be not credible. She did not comment on his
testimony about how he entered the country and she did not
make an explicit adverse credibility finding or even suggest
that she found him to be not credible, on this issue or any
other. Indeed, later in the hearing, the IJ questioned
Cabrera-Ochoa about his gang history, and after he answered,
she said, "Christian, I have to give you credit for
were honest at least with meSo at least you told me the truth
about your gang affiliation." 2007 Transcript at 16,
Def.'s Ex. O, ECF 41. The IJ was able to observe
Cabrera-Ochoa and assess his credibility, and this is the
only statement she made about his credibility. Given that she
found him to be credible during one part of his testimony,
this Court will not infer that she found him to be not
credible in another part, when nothing in the record suggests
that. In the absence of any evidence contradicting
Cabrera-Ochoa's testimony about his mode of entry or any
suggestion that the IJ found his testimony to be not
credible, the Court finds that Cabrera-Ochoa entered on a
false passport and that the LPs finding of entry without
inspection was simply a mistake.
ORR Staff Dissuaded Cabrera-Ochoa From Voluntarily
end of the 2007 hearing, the IJ granted Cabrera-Ochoa
voluntary departure. See 2007 Transcript at 18,
Def.'s Ex. O, ECF 41; Order of the Immigration Judge,
Def.'s Ex. Q, ECF 39-1. The IJ also granted him two weeks
to obtain the money necessary for voluntary departure.
See 2007 Transcript at 18, Def.'s Ex. O, ECF 41.
While Cabrera-Ochoa was being detained after his hearing,
however, counselors at the ORR juvenile detention center
dissuaded him from voluntarily departing. See
Cabrera-Ochoa Decl. ¶ 15, Def.'s Ex. A, ECF 39-1.
The counselors told me not to use my own money or my
aunt's money to pay for my fare back to Mexico because
either way I was getting deported to Mexico. The counselors
told me to save any money that my aunt ...